Eugene Volokh's Blog, page 2653
December 12, 2011
Debate on Fisher v. University of Texas
For DC-area readers who may be interested, this Friday the Federalist Society and the Heritage Foundation are co-sponsoring a debate on Fisher v. University of Texas, an important affirmative action case that the Supreme Court is now deciding whether or not to take.
The debate pits James Ho, counsel for the University of Texas in the case, and Loren Alikhan, counsel for the League of United Latin American Citizens (arguing for the University's position) against Gail Heriot of the US Commission on Civil Rights and Roger Clegg of the Center for Equal Opportunity (arguing that the university's plan is unconstitutional).
I previously blogged about Fisher here and here.
Interestingly, I have some connections to both sides in this debate. My wife is Gail Heriot's special assistant/counsel at the US Commission on Civil Rights. Jim Ho (who later went on to become Texas' state solicitor general) clerked for Fifth Circuit Judge Jerry E. Smith two years before I did, and interviewed me for the job before I was hired.
Marriage as a Creature of State Law
A number of commenters have asked about the relationship between law and marriage. Some, for example, have taken issue with the statement in my paper's abstract that "marriage is primarily a creature of state law." So I thought it was worth explaining a little but more about the relationship between state law and marriage.
Obviously, marriage is partly a private, non-governmental act. You can "marry" in the eyes of your religion or your community without ever marrying in the eyes of your state. Or you can have two separate marriage ceremonies — one religious and another one designed to satisfy the state's requirements — which is what I did when I got married. In that sense, marriage is not just something the government makes up.
But the government also has a lot of rules which depend on whether or not you are married — being married affects your taxes, your health benefits as a federal employee, rights under an ERISA plan, child custody, your right not to testify, and so on. So even if you think the private, non-governmental part of marriage is more important than the government-recognized ceremony, the government still needs a way to figure out who is married and who isn't. It generally uses state marriage ceremonies (or common-law marriage, now mostly of historical interest) to do so. Of course, you could also try to get rid of all laws that treat married couples differently from unmarried couples, but I no longer think that's wise, and it's certainly not going to happen any time soon.
So when I say that "marriage is primarily a creature of state law," I really mean: "when the law deals with marriage, it's mostly state law, not federal law, that determines marital validity." You get a marriage license from the state where you're getting married, not the federal government, and the state determines who can officiate, how old you have to be, whether you have adequately terminated any previous marriages you had, and so on. In that sense marital status is somewhat like property: federal law frequently turns on whether you have it, but it often uses state law to figure that out.
Finally, for purposes of this paper it doesn't actually matter whether the federal government has the constitutional power choose to create its own independent marriage regime — with its own federal officiants, federal marriage licenses, etc. The main point is that it hasn't created one. But I'll also add that I think it would be impractical and unwise for the federal government to try to create such an independent marriage regime.
Federalist Society Faculty Conference
I'm pleased to say that I'll be participating on a couple of panels at the Federalist Society Faculty Conference during the AALS conference this year. The conference will take place on the evening of Thu., Jan. 5 and then during the day Fri., Jan. 6, at the Omni Shoreham, which is across the street from the AALS conference hotel. If you are a law professor who'll be in D.C. those days, please consider registering for the conference; I've always found this particular conference to be much worth attending.
Security Guard's Right to Wear a Religious Headscarf
The EEOC reported a couple of weeks ago:
A Philadelphia-area security company will pay $50,000 and furnish significant equitable relief to settle a federal religious discrimination lawsuit, the Equal Employment Opportunity Commission (EEOC) announced today.
The EEOC charged that Imperial Security, Inc. failed to accommodate the religious beliefs of Julie Holloway-Russell, who is Muslim, and terminated her instead. Holloway-Russell wore a khimar, religious garb which covers her hair, ears, and neck, as required by her religious beliefs, when she interviewed for the job of security guard. However, when she reported to her first work assignment wearing her khimar, she was told to remove it. Holloway-Russell respectfully refused to do so because her religious beliefs mandated that she wear the religious head covering....
Sounds right to me under existing federal employment law. I discuss the relevant legal regime here, but the basic principle is that an employer must give religious employees special exemptions from generally applicable job requirements if (1) the requirements interfere with an employee's sincerely felt religious obligations and (2) such an exemption doesn't impose "undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j); TWA v. Hardison, 432 U.S. 63 (1977). The "undue hardship" standard isn't hard for the employer to meet — any "more than ... de minimis cost" to the employer would qualify as an undue hardship. But here the only cost was letting plaintiff wear the scarf, something that was highly unlikely to impose any more than de minimis cost on the employer. (To be sure, dealing with individual exemption requests always involves some cost, just in processing the request and deciding whether to grant it, but such a cost obviously isn't enough to warrant denying requests, or else the statutory duty of religious accommodation would never be triggered.)
Indeed, courts have commonly found that employers must give religious exemptions from dress code or grooming requirements, unless this would interfere with safety or with the public mission of the employer (such as a police department that requires uniforms). Thus, for instance, a man who feels a religious obligation to wear a beard is generally entitled to an exemption from an employer's no-beard policy, absent some evidence that such an exemption would pose an undue hardship on the employer. See, e.g., Carter v. Bruce Oakley, Inc., 849 F. Supp. 673 (E.D. Ark. 1993). A woman who feels a religious obligation not to wear pants is likewise generally entitled to such an exemption, again unless there's some good reason (such as safety) for barring her from wearing a skirt or a dress. The same principle should apply to this case, especially since the arguments in favor of denying police officers the right to such accommodations — that such a no-religious-headgear policy is necessary to foster public "perception of [the police department's] impartiality by citizens of all races and religions whom the police are charged to serve and protect" — don't generally apply to private security guards.
One can debate whether it's good policy to require private employers to give employees special religious exemptions (or conscientious examples motivated by deeply held secular philosophical beliefs, which the EEOC and many courts have held are likewise covered by the religious accommodation requirement). But that's the law.
Improperly Performed Religious Marriage + Religious Divorce + Re-Marriage = Bigamy
That's the result of Mussa v. Palmer-Mussa (N.C. Ct. App. Dec. 6, 2011) (2–1 vote):
On 27 November 1997, plaintiff and Nikki Palmer–Mussa ("defendant") were married in Raleigh, North Carolina. The parties separated on 3 February 2009. The parties had three children together.
Earlier in 1997, defendant participated in a wedding ceremony with Khalil Braswell ("Mr.Braswell"). At the ceremony, defendant and Mr. Braswell consented to become husband and wife. Neither defendant nor Mr. Braswell obtained a marriage license, as they only sought to comply with Islamic marriage requirements. After the ceremony, the couple lived together in Maryland, but the marriage was never consummated.
Defendant divorced Mr. Braswell in the manner required by Islamic law by returning the dowry and declaring that she was divorced from her husband. At the time this took place, defendant believed she was divorced since the marriage was entered into under Islamic law and ended under Islamic law. However, defendant never sought a judicial divorce or annulment and Mr. Braswell was still alive.
After returning to North Carolina, defendant met plaintiff. Shortly after meeting, the parties decided to marry and remained married for twelve years. During the marriage, the parties purchased property as husband and wife, filed joint tax returns and defendant was listed as plaintiff's wife on his insurance policy.
On 4 December 2008, defendant filed a complaint for divorce from bed and board, in another action. As a result of those proceedings, the court granted defendant child support, post-separation support and attorney's fees. On 3 December 2009, plaintiff filed a complaint for annulment based on bigamy. Plaintiff alleged his marriage to defendant was void ab initio, pursuant to N.C. Gen.Stat. § 51–3, as defendant had been married to Mr. Braswell earlier in 1997, had never obtained an annulment or divorce from Mr. Braswell and Mr. Braswell was still living....
While the evidence presented at trial supported the trial court's finding that Kareem [who officiated at the Palmer/Braswell marriage] was not authorized to conduct the marriage within the statutory requirements [which were that the officiant be "ordained minister of any religious denomination, minister authorized by his church, or ... a magistrate"], the court's finding does not support its' conclusion of law that defendant and Mr. Braswell were not married. The well-established law in North Carolina confirms that only bigamous marriages are void and all other marriages are voidable. [Citations omitted. –EV] Furthermore, the Court has uniformly held "that a marriage, without a license as required by statute, is valid." Therefore, even though defendant and Mr. Braswell did not have a marriage license and the ceremony failed to meet statutory requirements, the marriage is merely voidable....
[A] voidable marriage is valid until a tribunal annuls the marriage in a direct proceeding.... In the instant case, defendant admitted that neither a divorce nor an annulment was granted by a court in North Carolina, or any other state, and that Mr. Braswell was still living. While defendant claimed she and Mr. Braswell were divorced according to the laws of Islam, there is no authority supporting the dissolution of a marriage by religious means that can be deemed to be "the equivalent of a judicial determination" regarding the validity of a marriage. Therefore, at the time of defendant's marriage to plaintiff, she was still married to Mr. Braswell and thus any marriage between plaintiff and defendant was bigamous, and consequently void....
Google Currents: Reading the Conspiracy on the iPhone or Android Smart Phones
I am told that there is now a nice portable way to read our blog on smart phones: Go to the iPhone or Android App Store from their cell phones, install Google Currents, and, once it's installed, search for "Volokh Conspiracy." Once you take care of that, fresh Conspiracy posts will be pushed out to your smart phones. If you're interested, please try it and let me know how it works!
Proposed Constitutional Amendment Would Strip Pro-Business (But Not Anti-Business) Non-Profits of First Amendment Rights
I blogged about the Sen. Sanders / Reps. Deutch, DeFazio, Hastings, McDermott proposed constitutional amendment last week, but an e-mail from a reader led me to one other problem with the amendment. The amendment, you may recall, reads:
Section 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.
Section 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.
Section 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.
Section 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate's own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.
What the amendment would do with the speech of nonprofits is not clear: Section 1 says constitutional rights "are the rights of natural persons" — which doesn't include groups such as the ACLU, the NRA, the NAACP, and so on — but at the same time says that they "do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests," a category that also doesn't include such non-business-related nonprofits. So the proposal is ambiguous as to those groups.
But non-profits that are "established ... to promote business interests" — even when they are not funded by business corporations, but only by private individuals — clearly would be denied constitutional rights by the proposed amendment. So a non-profit aimed at promoting "business interests" would be stripped of the freedom of speech and of the press (and other rights), but a non-profit aimed at opposing those same business interests would retain those rights.
Of course, section 4 specifically says that the government "shall have the power to regulate and set limits on all election ... expenditures," with no exception for nonprofit corporations, pro-business or otherwise — so maybe after all the amendment would equally strip all nonprofits of the right to speak about elections. The government would simply have to set a $100 limit on nonprofits' election expenditures, and that would strip them of the ability to send out mailings, buy newspaper ads, buy billboards, and even spend more than $100 in employee salaries to maintain Web sites. At least that would be equality, albeit equality of speech suppression.
But as to non-election-related speech, pro-business nonprofits would be stripped of constitutional rights more generally by section 1, while non-pro-business nonprofits would presumably still have First Amendment rights (albeit limited as to election-related speech by section 4).
Amicus Brief in United States v. Alvarez, the Supreme Court's Stolen Valor Act Case
Prof. James Weinstein (Arizona State) and I filed an amicus brief last week in United States v. Alvarez, the Supreme Court's Stolen Valor Act case. If you're interested in the First Amendment and knowingly false statements of fact, you might want to have a look at the brief, whether in PDF form or in the posts below, which contain nearly all the substantive text (minus a few footnotes). Here's the Summary of Argument:
Consistent with this Court's repeated observation that "there is no constitutional value in false statements of fact," Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), various state and federal laws restrict a wide range of knowingly false statements, and not just the familiar categories of defamation, fraudulent solicitation of money, and perjury. Most of these laws are broadly accepted as constitutional, and we expect that this Court will be-lieve that the laws should indeed be upheld.
The best way to do so would be for this Court to (1) treat knowing falsehoods as a categorical excep-tion to First Amendment protection, while (2) recognizing some limitations to this rule (for instance, with regard to statements about the government, science, and history) in order to avoid an undue chilling effect on true factual statements, statements of opinion, or other constitutionally valuable expression. Recognizing such a general First Amendment exception for knowing falsehoods will avoid a proliferation of First Amendment exceptions, and of cases upholding content-based speech restrictions under strict scrutiny — developments that would threaten the coherence of free speech doctrine and dangerously dilute the protection currently provided to valuable speech by the strict scrutiny test.
Amicus Brief in United States v. Alvarez, the Supreme Court's Stolen Valor Act case
Prof. James Weinstein (Arizona State) and I filed an amicus brief last week in United States v. Alvarez, the Supreme Court's Stolen Valor Act case. If you're interested in the First Amendment and knowingly false statements of fact, you might want to have a look at the brief, whether in PDF form or in the posts below, which contain nearly all the substantive text (minus a few footnotes). Here's the Summary of Argument:
Consistent with this Court's repeated observation that "there is no constitutional value in false statements of fact," Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), various state and federal laws restrict a wide range of knowingly false statements, and not just the familiar categories of defamation, fraudulent solicitation of money, and perjury. Most of these laws are broadly accepted as constitutional, and we expect that this Court will be-lieve that the laws should indeed be upheld.
The best way to do so would be for this Court to (1) treat knowing falsehoods as a categorical excep-tion to First Amendment protection, while (2) recognizing some limitations to this rule (for instance, with regard to statements about the government, science, and history) in order to avoid an undue chilling effect on true factual statements, statements of opinion, or other constitutionally valuable expression. Recognizing such a general First Amendment exception for knowing falsehoods will avoid a proliferation of First Amendment exceptions, and of cases upholding content-based speech restrictions under strict scrutiny — developments that would threaten the coherence of free speech doctrine and dangerously dilute the protection currently provided to valuable speech by the strict scrutiny test.
Alvarez Brief, Part I: State and Federal Laws Criminalize or Impose Civil Liability for Many Categories of Knowingly False Statements
We begin by outlining some of the ways that the law punishes knowing falsehoods — restrictions that are generally seen by courts as not violating the First Amendment.
We use the term "knowing falsehoods" in this brief as shorthand for false statements of fact that the speaker knows are false, and that are reasonably perceived as factual assertions. We exclude from this category statements that are likely to be understood as fiction, humor, parody, or hyperbole, Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 14 (1970); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 57 (1988), rather than as false statements of fact. To our knowledge, the laws we discuss likewise exclude such statements, and we believe the Stolen Valor Act, properly interpreted, does so as well. See United States v. Perelman, 658 F.3d 1134, 1138 (9th Cir. 2011) (holding that the provision of the Stolen Valor Act that bears the unauthorized wearing of medals, 18 U.S.C. § 704(a), should be interpreted as limited to situations where the wearer "has an intent to deceive").
We do not discuss how the law should treat statements that result from an honest mistake, whether negligent or without fault, on the speaker's part; most of the laws described below do not cover such innocently mistaken statements. We also do not specifically discuss recklessly false statements, though we note that recklessly false statements are generally treated similarly to knowingly false statements under this Court's "actual malice" standard, New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Here then is a partial list of the categories of knowing falsehoods that are restricted, largely uncontroversially:
1. Defamatory falsehoods, which is to say knowing falsehoods that injure an individual's reputation. New York Times Co. v. Sullivan (holding that such speech is generally unprotected).
2. Perjury, false statements under oath in government proceedings. Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961) (stating that such speech is constitutionally unprotected).
3. Fraudulent attempts to obtain money, including within otherwise fully protected speech — such as charitable solicitation — and not merely within the less protected category of "commercial speech." Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003) (holding that such speech is constitutionally unprotected).
4. Speech actionable under the false light tort, which covers even nondefamatory but offensive knowingly false statements about another person. Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974) (holding that this cause of action is constitutionally permissible); Time, Inc. v. Hill, 385 U.S. 374 (1967) (likewise). In some states, this tort is limited to speech that is both knowingly false and "[a]n unwarranted and/or wrongful intrusion * * * [into plaintiff's] private or personal affairs with which the public had no legitimate concern," Cantrell, 419 U.S. at 250 n.3. But in other states the tort has no such limitation, and extends even to statements about a person that do not deal with matters that are normally confidential or embarrassing, e.g., Hill, 385 U.S. at 385, 390, though sometimes with the limitation that the falsehood be "highly offensive" to a reasonable person, Restatement (Second) of Torts § 652E.
5. Intentional infliction of severe emotional distress through knowing falsehoods, even in the absence of defamation or invasion of privacy. See Hustler, 485 U.S. at 56 (allowing recovery in such cases). The classic example of such an actionable statement is knowingly falsely telling someone that his or her spouse "has been badly injured in an accident," Restatement (Second) of Torts § 46 ill. 1.
6. Trade libel, at least when limited to knowingly false statements disparaging a product (even outside the special context of commercial advertising), and the related tort of slander of title, at least when limited to knowingly false statements denying a person's ownership of property. Unelko Corp. v. Rooney, 912 F.2d 1049, 1057–58 (9th Cir. 1990) (holding that the trade libel tort is constitutional, so long as "actual malice" is shown); SCO Group, Inc. v. Novell, Inc., 692 F. Supp. 2d 1287, 1296 (D. Utah 2010) (likewise as to slander of title). This is so even though trade libel does not injure the individual dignitary interests that have long justified defamation law, Milkovich v. Lorain Journal Co., 497 U.S. 1, 22 (1990) (quoting with approval Rosenblatt v. Baer, 383 U.S. 75, 92–93 (1966) (Stewart, J., concurring)).
7. Unsworn knowingly false statements to government officials, punishable under laws such as 18 U.S.C. § 1001 and state and federal laws prohibiting obstruction of justice or the making of false police reports. E.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982) (upholding the constitutionality of § 1001); United States v. Konstantakakos, 121 Fed. Appx. 902, 905 (2d Cir. 2005) (noting that "deliberate falsehoods enjoy no First Amendment protection," in the context of a prosecution for knowingly false statements on an immigration application); People v. Hanifin, 77 A.D.3d 1181 (N.Y. App. Div. 2010) (rejecting First Amendment challenge to defendant's conviction for calling 911 to falsely claim that "he had gasoline and was going to set himself of fire"); State v. Bailey, 644 N.E.2d 314 (Ohio 1994) (holding that lying to a police officer in order to interfere with the officer's attempt to apprehend defendant's brother was obstruction of justice); Howell v. State, 921 N.E.2d 503 (Ind. Ct. App. 2009) (holding that falsely representing one's identity in sending e-mails aimed at deceiving a police officer during an investigation was obstruction of justice). This likely includes knowingly false crime reports made to the public in general, if they seem certain to come to the attention of law enforcement officials. Haley v. State, 712 S.E.2d 838 (Ga. 2011) (rejecting First Amendment challenge to defendant's conviction when defendant released YouTube videos claiming to be a serial killer and was then prosecuted for making a false statement on a matter within the jurisdiction of a state agency).
8. Knowing falsehoods likely to provoke public panic. Schenck v. United States, 249 U.S. 47, 52 (1919) ("The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."); 47 C.F.R. § 73.1217 (banning knowingly false statements on broadcast radio or television that foreseeably cause "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties"); 18 U.S.C. § 1038(a)(1) (banning knowingly false statements claiming, among other things, that an attack involving weapons of mass destruction "has taken, is taking, or will take place"); United States v. Brahm, 520 F. Supp. 2d 619, 626–27 (D.N.J. 2007) (citing Schenck in upholding 18 U.S.C. § 1038(a)(1) against a constitutional challenge, in a case in which defendant posted a message on a Web site stating that the following month "there will be seven 'dirty' explosive devices detonated in seven different U.S. cities: Miami, New York City, Atlanta, Seattle, Houston, Oakland, and Cleveland. The death toll will approach 100,000 from the initial blast and countless other fatalities will later occur as a result from radio[a]ctive fallout.").
9. Knowingly falsely representing oneself as a government official and acting in that capacity, even when this does not involve fraudulently depriving anyone of money or property. Thus, for instance, the federal statute barring impersonation of federal officials, 18 U.S.C. § 912, has been read to require only "that the defendants have, by artifice and deceit, sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct." United States v. Lepowitch, 318 U.S. 702, 704 (1943). "[A] person may be defrauded although he parts with something of no measurable value at all." Id. at 705.
Accordingly, this Court in Lepowitch upheld a conviction under a former version of 18 U.S.C. § 912 for defendant's pretending to be an FBI agent and thereby causing someone to yield information about another person's whereabouts. The Eight Circuit upheld a § 912 conviction for defendant's pretending to be an FBI agent, including in conversations with his girlfriend, though the opinion does not report on any evidence that the pretense was the but-for cause of anyone's giving defendant money or property. United States v. Robbins, 613 F.2d 688 (8th Cir. 1979). The Seventh Circuit upheld a § 912 conviction for defendant's pretending to his landlady to be an FBI agent, apparently with no attempt to use the pretense to get money or property. United States v. Hamilton, 276 F.2d 96 (7th Cir. 1960). Likewise, the Kansas Supreme Court upheld a conviction under a Kansas false impersonation statute for defendant's representing himself to a neighbor as an undercover state police officer, apparently with no attempt to use the pretense to get money or property. State v. Messer, 91 P.3d 1191 (Kan. 2004).
And courts have upheld similar statutes against a First Amendment challenge. Chappell v. United States, 2010 WL 2520627 (E.D. Va. June 21), for instance, upheld a state ban on impersonating a police officer. United Seniors Ass'n, Inc. v. Social Sec. Admin., 423 F.3d 397, 404, 407 (4th Cir. 2005), upheld a federal ban on any use of the words "Social Security" to falsely represent the material as authorized by the Social Security Administration, though the ban covered not just solicitation of money but also, for instance, posters seeking viewers for a television broadcast. And State v. Wickstrom, 348 N.W.2d 183 (Wis. Ct. App. 1984), upheld a state ban on falsely acting as a public officer, in a case where the actions included making public statements, making private statements, and filing documents falsely indicating that the speaker was a municipal judge or town clerk.
These statutes are not limited to impersonation of government officials who have coercive power such as that possessed by FBI agents or police officers. See, e.g., 18 U.S.C. § 912 (covering impersonation of any federal government agent); State v. Cantor, 534 A.2d 83 (N.J. Super. Ct. App. Div. 1987) (upholding conviction for defendant newspaper reporter's impersonating a county morgue employee in order to get information about a homicide victim from the victim's mother).
10. Knowingly falsely representing oneself as having a particular university degree or professional license, regardless of whether the false representation is intended to defraud a prospective employer or professional client. Long v. State, 622 So. 2d 536 (Fla. Ct. App. 1993) (upholding against First Amendment challenge a statute barring knowingly false claims of having a university degree); People v. Kirk, 310 N.Y.S.2d 155 (Cnty. Ct. 1969) (likewise, though reading the statute as limited to situations where there is an "intent to deceive"); State v. Marino, 929 P.2d 173 (Kan. Ct. App. 1996) (upholding against First Amendment challenge a statute barring knowingly false claims of having a professional license, as applied to a defendant who claimed to be a member of the Kansas bar when speaking on a television program to publicize a screenplay that he had written).
11. Knowingly providing a false social security number, even when there was no purpose to defraud anyone of anything of "pecuniary value," and the statement is not made to government agents. E.g., United States v. Silva-Chavez, 888 F.2d 1481, 1483–84 (5th Cir. 1989); United States v. Manning, 955 F.2d 770 (1st Cir. 1992), abrogated as to other parts of the decision, as recognized by United States v. Gonsalves, 435 F.3d 64, 72 (1st Cir. 2006).
12. Knowing falsehoods to voters about the authorship or endorsement of political campaign materials, when the statements violate trademark law or other legal rules, even when no money is involved. E.g., United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997) (rejecting First Amendment arguments and upholding injunction against defendant's using the name "United We Stand, America"); United We Stand America, Inc. v. United We Stand, America New York, Inc., 941 F. Supp. 39 (S.D.N.Y. 1996) (stating that the Lanham Act applies not just to deceptive uses of another organization's name with respect to fundraising, but also with respect to "holding public meetings and press conferences" and "propounding proposals") (quoting Brach Van Houten Holding, Inc. v. Save Brach's Coalition for Chicago, 856 F. Supp. 472, 475–76 (N.D. Ill. 1994)); Tomei v. Finley, 512 F. Supp. 695 (N.D. Ill. 1981) (rejecting First Amendment arguments and enjoining Democratic candidates from using the acronym "REP," as in "Vote REP April 7," as shorthand for the Representation for Every Person Party, a name seemingly chosen precisely to deceive voters into thinking that the candidates were Republicans); Schmitt v. McLaughlin, 275 N.W.2d 587, 590 (Minn. 1979) (rejecting First Amendment arguments in holding that the defendant's use of initials "DFL" in advertisements and lawn signs violated a state law barring false claims of support or endorsement by a political party, there the Democratic Farmer Labor party); People v. Duryea, 351 N.Y.S.2d 978, 988 (Sup. Ct. 1974) (dictum) (stating that a ban on false claims of endorsement by a political party would be constitutional), aff'd, 354 N.Y.S.2d 129 (App. Div. 1974).
13. Making a knowingly false statement about which office one currently holds in an election campaign. Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 389 N.W.2d 446 (Mich. Ct. App. 1986) (upholding against First Amendment challenge a statute banning false claims that one is the incumbent); Ohio Democratic Party v. Ohio Elections Comm'n, 2008 WL 3878364 (Ohio. Ct. App. Aug. 21) (upholding against First Amendment challenge a statute banning candidates from claiming to hold an office that they do not currently hold).
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